New legal rights to challenge Australian Government procurements passed into law

In a significant step for Australian procurement laws, the Government Procurement (Judicial Review) Bill 2017 (Cth) (the Bill) passed the Senate without amendment on 18 October 2018.

The Government Procurement (Judicial Review) Act 2018 (Cth) (the Act) (once commenced) will provide suppliers with a statutory platform to challenge a government procurement process in the Federal Court of Australia (FCA) or Federal Circuit Court of Australia (FCCA) for a breach of the Commonwealth Procurement Rules (CPRs).

Overview

Set out below is a snapshot of the Act. For more detail please refer to our previous article on the Bill here.

The Act:

will commence six months after assent (being 20 April 2019) or earlier by proclamation

only applies to ‘covered procurements’ (where Divisions 1 and 2 of the CPRs apply, the procurement is not exempt under Division 2 and the procurement meets the relevant monetary threshold)

only applies to alleged breaches that occur after the Act’s commencement date. Importantly, procurement processes already on foot are caught if the alleged breach occurs after the commencement date

gives the FCA or FCCA the power to grant two key remedies for a contravention of the relevant CPRs, being:

injunctions

compensation

provides a ‘public interest certificate’ mechanism for government procuring entities to resist an injunction in certain circumstances

imposes additional obligations on procuring entities to investigate complaints and suspend a procurement pending an investigation (where there is no public interest certificate in force).